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A Bill for an Act to amend the Migration Act 1958, and for related purposes
Administered by: DIMA
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 15 May 2006
Introduced HR 11 May 2006
Table of contents.

2004-2005-2006

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

 

 

Migration Amendment (Designated Unauthorised Arrivals) Bill 2006

 

No.      , 2006

 

(Immigration and Multicultural Affairs)

 

 

 

A Bill for an Act to amend the Migration Act 1958, and for related purposes

  

  


Contents

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 1

3............ Schedule(s).......................................................................................... 1

Schedule 1—Amendments                                                                                                 3

Migration Act 1958                                                                                                     3

 


A Bill for an Act to amend the Migration Act 1958, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Migration Amendment (Designated Unauthorised Arrivals) Act 2006.

2  Commencement

                   This Act commences on the day after it receives the Royal Assent.

3  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


 

Schedule 1Amendments

  

Migration Act 1958

1  Subsection 5(1)

Insert:

designated unauthorised arrival has the meaning given by section 5F.

2  Subsection 5(1) (note to the definition of excised offshore place)

Omit “offshore entry persons”, substitute “certain designated unauthorised arrivals”.

3  Subsection 5(1) (definition of offshore entry person)

Repeal the definition.

4  Subsection 5(1) (paragraph (a) of the definition of transitory person)

Omit “an offshore entry person”, substitute “a person”.

5  Subsection 5(1) (definition of transitory person)

Omit all the words after paragraph (c), substitute:

but does not include a person who has:

                     (d)  been assessed to be a refugee for the purposes of the Refugees Convention as amended by the Refugees Protocol; or

                     (e)  become the holder of a substantive visa; or

                      (f)  left Australia (see subsection (4B)), other than as a result of being:

                              (i)  removed under subsection 198(1A); or

                             (ii)  taken under subsection 198A(1);

                            from Australia to a country in respect of which a declaration is in force under subsection 198A(3); or

                     (g)  left a country (see subsection (4C)), in respect of which a declaration is in force under subsection 198A(3), to travel to a country other than Australia.

6  After subsection 5(4A)

Insert:

          (4B)  For the purposes of paragraph (f) of the definition of transitory person in subsection (1) of this section, a person is taken not to have left Australia if the person has:

                     (a)  been removed under section 198 to another country but has been refused entry by that country; and

                     (b)  returned to Australia as a result of that refusal.

          (4C)  For the purposes of paragraph (g) of the definition of transitory person in subsection (1) of this section, a person is taken not to have left a country if:

                     (a)  the person has:

                              (i)  departed the country to travel to one or more other countries; and

                             (ii)  been refused entry by each of those other countries; and

                            (iii)  returned to the first-mentioned country as a result of the refusal or refusals; or

                     (b)  the person has:

                              (i)  departed the country for medical treatment in one or more other countries; and

                             (ii)  returned to the first-mentioned country after receiving medical treatment.

7  Subparagraph 5A(3)(j)(ii)

Omit “an offshore entry person”, substitute “a designated unauthorised arrival”.

8  After section 5E

Insert:

5F  Meaning of designated unauthorised arrival

             (1)  For the purposes of this Act, a person is a designated unauthorised arrival if the person:

                     (a)  is not an exempt person (see subsection (2)); and

                     (b)  became an unlawful non-citizen because the person:

                              (i)  entered Australia at an excised offshore place after the excision time for that offshore place; or

                             (ii)  entered Australia by sea (see subsection (8)) on or after 13 April 2006; and

                     (c)  has not, after that entry:

                              (i)  become the holder of a substantive visa; or

                             (ii)  left Australia (see subsection (10)), other than as a result of being taken under subsection 198A(1) from Australia to a country in respect of which a declaration is in force under subsection 198A(3); or

                            (iii)  left a country (see subsection (11)), in respect of which a declaration is in force under subsection 198A(3), to travel to a country other than Australia.

             (2)  For the purposes of this section, a person is an exempt person if the person:

                     (a)  is a New Zealand citizen who holds and produces a New Zealand passport that is in force; or

                     (b)  is a non-citizen who holds and produces a passport that is in force and is endorsed with an authority to reside indefinitely on Norfolk Island; or

                     (c)  was brought to the migration zone, pursuant to subsection 185(3A) of the Customs Act 1901 as a result of being found on a ship detained under section 185 of that Act, and no officer reasonably suspected that the person:

                              (i)  was seeking to enter the migration zone; and

                             (ii)  would, if in the migration zone, be an unlawful non-citizen; or

                     (d)  is in a class of persons declared by the Minister, under subsection (3), to be exempt; or

                     (e)  is declared by the Minister, under subsection (6), to be exempt.

Declarations—specified class of persons

             (3)  The Minister may, for the purposes of paragraph (2)(d), declare, in writing, a specified class of persons to be exempt.

             (4)  A class of persons may be specified in a declaration made under subsection (3) even if ascertaining the membership of the class relies on a discretion being exercised or a particular opinion being held.

             (5)  A declaration made under subsection (3) is a legislative instrument.

Declarations—specified person

             (6)  The Minister may, for the purposes of paragraph (2)(e), declare, in writing, a specified person to be exempt if:

                     (a)  regulations made for the purposes of this subsection specify criteria that a person must satisfy before the person may be declared, under this subsection, to be exempt; and

                     (b)  the Minister is satisfied that the person satisfies those criteria.

             (7)  A declaration made under subsection (6) is not a legislative instrument.

Interpretation

             (8)  For the purposes of this section, a person is taken to have entered Australia by sea if the person has:

                     (a)  travelled to Australia by sea and entered the migration zone (whether or not by sea); or

                     (b)  entered the migration zone by air (see subsection (9)) pursuant to subsection 245F(9) as a result of being found on a ship detained under section 245F; or

                     (c)  entered the migration zone by air (see subsection (9)) after being rescued at sea.

             (9)  For the purposes of subsection (8), a person who enters Australia on an aircraft is taken to have entered the migration zone by air only if that aircraft lands in the migration zone.

           (10)  For the purposes of this section, a person is taken not to have left Australia if the person has:

                     (a)  been removed under section 198 to another country but has been refused entry by that country; and

                     (b)  returned to Australia as a result of that refusal.

           (11)  For the purposes of this section, a person is taken not to have left a country if:

                     (a)  the person has:

                              (i)  departed the country to travel to one or more other countries; and

                             (ii)  been refused entry by each of those other countries; and

                            (iii)  returned to the first-mentioned country as a result of the refusal or refusals; or

                     (b)  the person has:

                              (i)  departed the country for medical treatment in one or more other countries; and

                             (ii)  returned to the first-mentioned country after receiving medical treatment.

9  Subsection 42(4) (note)

Repeal the note, substitute:

Note:          Section 189 provides for the detention of unlawful non-citizens in the migration zone.

10  Subsection 46A(1)

Repeal the subsection, substitute:

             (1)  An application for a visa is not a valid application if it is made by a designated unauthorised arrival who is in Australia.

Note:       The heading to section 46A is altered by omitting “offshore entry persons” and substituting “designated unauthorised arrivals”.

11  Subsection 46A(2)

Omit “an offshore entry person”, substitute “a designated unauthorised arrival”.

12  Subsection 46A(2)

Omit “the person”, substitute “the designated unauthorised arrival”.

13  Paragraph 46A(5)(a)

Omit “offshore entry person”, substitute “designated unauthorised arrival”.

14  Paragraph 46A(5)(b)

Omit “offshore entry person”, substitute “designated unauthorised arrival”.

15  Subsection 46A(7)

Omit “offshore entry person” (wherever occurring), substitute “designated unauthorised arrival”.

16  Subsection 46B(1)

Repeal the subsection, substitute:

             (1)  An application for a visa is not a valid application if it is made by a transitory person who is in Australia.

17  Subsection 189(2)

Omit “must”, substitute “may”.

18  Subsection 198A(1)

Omit “an offshore entry person”, substitute “a designated unauthorised arrival”.

Note:       The heading to section 198A is altered by omitting “Offshore entry person” and substituting “Designated unauthorised arrival”.

19  Paragraph 198A(2)(a)

Omit “person”, substitute “designated unauthorised arrival”.

20  Paragraph 198A(2)(b)

Omit “person”, substitute “designated unauthorised arrival”.

21  Paragraph 198A(2)(c)

Omit “person”, substitute “designated unauthorised arrival”.

22  Subsection 198A(4)

Repeal the subsection, substitute:

             (4)  A person who is a designated unauthorised arrival:

                     (a)  may be dealt with under this section even if the person is in immigration detention immediately prior to being dealt with under this section; and

                     (b)  is taken not to be in immigration detention while the person is being dealt with under this section.

Note:          For the meaning of immigration detention, see subsection 5(1).

23  Paragraph 198C(8)(b)

Omit “section 46B does”, substitute “sections 46A and 46B do”.

24  Subparagraph 336F(3)(a)(ii)

Omit “an offshore entry person”, substitute “a designated unauthorised arrival”.

25  Subparagraph 336F(4)(a)(ii)

Omit “an offshore entry person”, substitute “a designated unauthorised arrival”.

26  Paragraph 336F(5)(c)

Omit “an offshore entry person”, substitute “a designated unauthorised arrival”.

27  After Part 8C

Insert:

Part 8DReports relating to designated unauthorised arrivals and transitory persons

  

486R  Secretary’s obligation to report to Minister

             (1)  The Secretary must, in respect of each financial year that ends on or after 30 June 2007, give to the Minister a report under this section not later than 30 September in the next financial year.

             (2)  A report under this section in respect of a particular financial year must contain information about:

                     (a)  arrangements during that financial year for designated unauthorised arrivals, and transitory persons, seeking asylum, including arrangements for:

                              (i)  assessing any claims for refugee status made by such designated unauthorised arrivals and transitory persons; and

                             (ii)  the accommodation, health care and education of such designated unauthorised arrivals and transitory persons; and

                     (b)  the number of asylum claims, by designated unauthorised arrivals and transitory persons, that are assessed during that financial year; and

                     (c)  the number of designated unauthorised arrivals and transitory persons determined, during that financial year, to be refugees.

             (3)  A report under this section must not include:

                     (a)  the name of any person who is or was a designated unauthorised arrival or a transitory person; or

                     (b)  any information that may identify such a person; or

                     (c)  the name of any other person connected in any way with any person covered by paragraph (a); or

                     (d)  any information that may identify that other person.

             (4)  The report may include any other information that the Secretary thinks appropriate.

             (5)  The Minister must cause a copy of a report under this section to be tabled in each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report from the Secretary.

28  Paragraph 494AA(1)(a)

Repeal the paragraph, substitute:

                     (a)  proceedings relating to an unauthorised entry by a person who, as a result of that entry, became a designated unauthorised arrival;

Note:       The heading to section 494AA is altered by omitting “offshore entry persons” and substituting “designated unauthorised arrivals”.

29  Paragraph 494AA(1)(b)

Omit “an offshore entry person”, substitute “a person”.

30  At the end of paragraph 494AA(1)(b)

Add “in relation to the person”.

31  Paragraph 494AA(1)(c)

Repeal the paragraph, substitute:

                     (c)  proceedings relating to the lawfulness of the detention of a person during the ineligibility period in relation to the person, being a detention based on the status of the person as an unlawful non-citizen;

32  Subsection 494AA(4) (definition of ineligibility period)

Repeal the definition, substitute:

ineligibility period, in relation to a person, means the period from the time the person made an unauthorised entry, which resulted in the person becoming a designated unauthorised arrival, until the time when the person next ceases to be an unlawful non-citizen.

33  Subsection 494AA(4) (definition of offshore entry)

Repeal the definition.

34  Subsection 494AA(4)

Insert:

unauthorised entry means an entry into Australia that occurs:

                     (a)  if the entry occurs at an excised offshore place—after the excision time for that offshore place; or

                     (b)  if the entry occurs at a place other than an excised offshore place—on or after 13 April 2006.

35  Paragraph 494AB(1)(b)

Omit “transitory”.

36  At the end of paragraph 494AB(1)(b)

Add “in relation to the person”.

37  Paragraph 494AB(1)(c)

Repeal the paragraph, substitute:

                     (c)  proceedings relating to the lawfulness of the detention of a person who is brought to Australia, as a transitory person, under section 198B, being a detention based on the status of the person as an unlawful non-citizen;

38  Paragraph 494AB(1)(d)

Omit “transitory person”, substitute “person, who at the time of the removal was a transitory person,”.

39  Subsection 494AB(4) (definition of ineligibility period)

Repeal the definition, substitute:

ineligibility period, in relation to a person, means the period from the time when the person was brought to Australia, as a transitory person, under section 198B until the time when the person next ceases to be an unlawful non-citizen.

40  Application of amendments

The amendments made by items 28 to 39 of this Schedule apply to:

                     (a)  the institution of proceedings on or after the day on which this item commences; and

                     (b)  the continuation, after the day on which this item commences, of proceedings that were instituted before that day, being proceedings instituted on or after 13 April 2006.

41  Transitional

(1)        If a person:

                     (a)  entered the migration zone (other than an excised offshore place) during the relevant period (see subitem (2)); and

                     (b)  made an application for a visa during the relevant period; and

                     (c)  was not granted the visa during the relevant period; and

                     (d)  on the commencement of section 5F of the Migration Act 1958 is covered by the definition of designated unauthorised arrival because of the entry mentioned in paragraph (a) of this subitem;

then, for the purposes of the Migration Act 1958, the application for the visa is taken, on and after the commencement of this item, not to be a valid application.

(2)        In this item:

relevant period means the period starting on 13 April 2006 and ending immediately before the commencement of this item.

42  Saving

(1)        This item applies to an authorisation under section 336D or 336F of the Migration Act 1958 that was in force immediately before the commencement of this item.

(2)        On and after the commencement of this item:

                     (a)  any reference in the authorisation to an offshore entry person is taken to be a reference to a designated unauthorised arrival; and

                     (b)  the authorisation is taken to authorise access to identifying information in relation to designated unauthorised arrivals to the extent that, immediately before the commencement of this item, the authorisation authorised access to identifying information in relation to offshore entry persons; and

                     (c)  the authorisation is taken to authorise disclosure of identifying information in relation to designated unauthorised arrivals to the extent that, immediately before the commencement of this item, the authorisation authorised disclosure of identifying information in relation to offshore entry persons.

43  Compensation for acquisition of property

(1)        If the operation of this Act would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

(2)        If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

(3)        The Consolidated Revenue Fund is appropriated for the purposes of this item.

(4)        In this item:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

44  Regulations

(1)        The Governor-General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2)        The Governor-General may also make regulations:

                     (a)  making provision (including provision by way of modification of any Act) for or in relation to matters consequential on amendments or repeals made by this Act; or

                     (b)  prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to:

                              (i)  the enactment of this Act; or

                             (ii)  the amendments or repeals made by this Act.

(3)        A modification under paragraph (2)(a) must not change the penalty for an offence.

(4)        In this item:

modifications include additions, omissions and substitutions.